In a few short months, revised FCC rules for calling or texting cell phones will take effect, creating new potential pitfalls for telemarketers that call or text cell phones.  For marketers, the revised rules command heightened attention, as the Center for Disease Control in 2012 estimated that over half of Americans either do not have a landline or receive all or almost all of their calls on a cell phone.  Because these specific requirements create more potential areas of noncompliance, plaintiff’s attorneys will be on the lookout for class action recovery from telemarketers who do not exactly follow the revised rule.

Current FCC rules for calling cell phones require “prior express consent” – which may be written or oral – to make such calls when an autodialer is used.  The revised rule, which will go into effect on October 16, 2013, will require “prior express written consent” for autodialed calls (or texts) made to cell phones for solicitation purposes.  (For informational calls and other non-solicitation calls, the existing “prior express consent” standard will continue to suffice.)  To obtain prior express written consent under the new rules, marketers must ensure that the consent is in writing, includes the written or digital signature of the person called, and contains the phone number the consenting person allows the telemarketer to contact.  In obtaining proper consent, the marketer must make a clear and conspicuous disclosure that the consumer is agreeing to receive telemarketing calls using an automatic telephone dialing system.  Moreover, marketers must also disclose that the consumer does not have to consent to receive the calls in order to purchase any property, goods, or services.

This new rule provides no further clarification on the question of “what is an autodialer,” which has troubled marketers since the Telephone Consumer Protection Act took effect long ago.  The FCC’s broad interpretation of the “autodialer” definition remains somewhat a mystery and presents difficult questions for marketers using preview dialers and other new technologies.

Many potential issues could arise with the disclosure requirement especially.  The FCC defines clear and conspicuous as “apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.”  This standard likely will be open to interpretation and opinion.

Nonetheless, because these new disclosure requirements are so specific, there is potential for class action attorneys to seek to hold telemarketers liable for anything less than strict compliance.  Telemarketers who market to consumers via cell phone and text have the potential to be severely harmed in a class action suit if they are not meticulous and thorough in their compliance efforts.

 

*Thomas Chappell is a Venable summer associate and not admitted to practice law.

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Ellen T. Berge

Ellen Berge provides counsel on regulatory compliance, government investigations, contract negotiations, and general business matters. Ellen focuses on advertising, marketing practices, payment processing, and merchant services. Her clients include major brand advertisers and direct-response retailers, and lead generators, telemarketers, media agencies, software providers…

Ellen Berge provides counsel on regulatory compliance, government investigations, contract negotiations, and general business matters. Ellen focuses on advertising, marketing practices, payment processing, and merchant services. Her clients include major brand advertisers and direct-response retailers, and lead generators, telemarketers, media agencies, software providers, and others who serve them. On the merchant services side, she leads a practice that works with banks, processors, sales agents, payment facilitators, independent software vendors, and fintech and financial services businesses. Ellen also serves as the firm’s managing partner of Professional Development and Recruiting.

Photo of Leonard L. Gordon Leonard L. Gordon

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in…

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in investigations and litigation with the FTC, state attorneys general, the Department of Justice (DOJ), and the Consumer Financial Protection Bureau (CFPB). Len also represents clients in business-to-business and class action litigation involving both consumer protection and antitrust issues. He also counsels clients on antitrust, advertising, and marketing compliance issues.